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FIRST DIVISION Date Filed: December 28, 2009
No. 1-08-0265
THOMAS MARTINEZ, ) Appeal from the) Circuit Court of
Plaintiff-Appellee, ) Cook County.)
v. ) No. 03 L 015529)
SARMED ELIAS, M.D., and ) The Honorable,BONE & JOINT CENTER, ) James Varga,
) Judge Presiding.Defendants-Appellants. )
PRESIDING JUSTICE HALL delivered the opinion of the court: The plaintiff, Thomas Martinez, filed a medical malpractice
case against the defendants, Sarmed Elias, M.D. and the Bone &
Joint Center, alleging that Dr. Elias performed unnecessary
procedures on the plaintiff's lower spine. Following trial, the
jury returned a verdict in favor of the plaintiff and against the
defendants in the amount of $500,000. The trial court granted
the defendants' posttrial motion for a remittitur and reduced the
jury award to $400,000.
The defendants appeal raising the following issues: whether
the admission of a financial motive for the surgery was error and
whether a new trial is required because the verdict was against
the manifest weight of the evidence. The plaintiff cross-
appeals, challenging the granting of the remittitur.
I. BACKGROUND
A. Facts
The plaintiff, a journeyman carpenter, injured his lower
back and right shoulder at work lifting a sheet of drywall on
No. 1-08-0265
2
November 14, 2000. At the time of his injury, the plaintiff was
42 years old and had underlying degenerative disc disease at
multiple levels of his lumbar spine. The plaintiff was initially
treated by several physicians before his primary care physician
referred him to Dr. Sarmed Elias, an orthopedic surgeon.
Dr. Elias treated the plaintiff from January 11, 2001, to
April 30, 2002. During the plaintiff's initial visit with Dr.
Elias, he complained of daily, debilitating shoulder and back
pain, which affected his ability to run, take long walks, and
lift anything more than light weights. The plaintiff complained
his back was stiff in the mornings and while sitting or driving;
the stiffness of his back prevented him from sitting in one place
for longer than an hour or two. He rated his pain at 3 to 4, on
a scale of 10. The plaintiff felt he could not return to work
given his pain.
On January 23, 2001, the plaintiff underwent an MRI of his
spine. The MRI showed the L2-L3 disc was normal, with
degenerative disc disease and mild stenosis at L3-L4, L4-L5, and
L5-S1, and neuroforaminal narrowing and end plate changes at all
three levels. The MRI of the plaintiff's shoulder showed a
complete tear of the rotator cuff tendon; the plaintiff did not
have this repaired. An X-ray taken January 26, 2001, showed a
herniated disc at L4-L5. On January 27, 2001, an EMG was
performed, which showed mildly active right radiculopathy,
radiating pain, involving the L5-S1 level. On January 30, 2001,
No. 1-08-0265
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Dr. Elias discussed the results of the tests with the plaintiff
and recommended a discogram to confirm the diagnosis and identify
the specific sites of pain.
A discogram is an outpatient diagnostic procedure where dye
is injected into a disc space, increasing pressure in the space.
The pressure created is intended to reproduce the patient's pain.
The patient is asked to indicate where he feels pain and to rate
the pain on a scale of 1 to 10. The discogram is done to
determine which disc, if any, is the cause of the patient's pain.
The results of the discogram may indicate the necessity for
surgery or an intradiscal electrothermal therapy (IDET)
procedure.
On May 7, 2001, the plaintiff saw another orthopedic
surgeon, Dr. Howard Freedberg. Dr. Freedberg diagnosed the
plaintiff with degenerative disc disease.
On July 26, 2001, the plaintiff returned to see Dr. Elias,
reporting his pain as a 7 out of 10. Again, Dr. Elias
recommended a discogram to confirm disc abnormalities.
On August 1, 2001, Dr. Elias performed the discogram. Based
on the procedure, Dr. Elias concluded the plaintiff had herniated
discs at L3-L4, L4-L5, and L5-S1, with grade five, through and
through, annular tears at these levels.
At the plaintiff's next appointment, Dr. Elias recommended
an endoscopic discectomy at L3-L4 and L4-L5 and the IDET
procedure at L5-S1, as soon as possible.
No. 1-08-0265
1At his August 7, 2001, visit to Dr. Elias, following his
discogram, the plaintiff completed a form indicating he had been
experiencing leg pain for eight months. At trial, the plaintiff
explained that he had been experiencing back pain for eight
months and had placed the entry in the wrong box on the form.
4
An endoscopic discectomy is an outpatient surgical procedure
to remove degenerated, nonfunctioning disc material. With the
assistance of X-ray fluoroscopy and a magnified video for
guidance, a small specially designed endoscopic probe is inserted
through the skin of the patient's back, between the vertebrae and
into the herniated disc space. Tiny surgical attachments are
then sent down the hollow center of the probe to remove a portion
of the offending disc. The doctor is able to view the disc
portion removal on a TV monitor. During an IDET procedure, the
doctor, with the assistance of a fluoroscope, inserts a small
catheter into the disc to attempt to seal the tear in the
annulus, the outer shell of the disc, using a temperature-
controlled heat source inside the catheter. No tissue is removed
from the disc.
On December 28, 2001, Dr. Elias performed an endoscopic
discectomy at L3-L4 and L4-L5 and the IDET procedure at L5-S1 on
the plaintiff. Following the procedures, the plaintiff
experienced pain in his right leg for the first time.1
On April 25, 2002, the plaintiff went to see Dr. Francisco
No. 1-08-0265
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Gutierrez, complaining of pain in the lower lumbar area,
radiating to the posterior area of his right leg. The plaintiff
complained that the pain worsened when he remained in the same
position too long. Dr. Gutierrez attributed the plaintiff's
symptoms to severe degenerative disease at L3-L4, L4-L5, and L5-
S1, producing three levels of bulging discs and severe stenosis
at this area of the spine. He recommended lumbar fusion surgery
to open the disc space, relieve nerve compression and stabilize
the plaintiff's lumbar spine.
On April 30, 2002, the plaintiff returned to see Dr. Elias.
Dr. Elias recommended myelogram injections to assess his
condition. The plaintiff did not follow Dr. Elias's
recommendation.
Two years later, on September 3, 2004, the plaintiff went to
see an orthopedic surgeon, Dr. Thomas Gleason, complaining of
right lower back and buttock pain radiating down to his right
leg, causing a limp. Dr. Gleason took X-rays and noted moderate
degenerative disc space narrowing at L3-L4 and L4-L5, with
greater narrowing at L4-L5.
The plaintiff underwent a recommended EMG/NCV test and an
MRI before returning to see Dr. Gleason on October 1, 2004. The
new MRI showed degenerative disc disease with disc space
narrowing at L3-L4, L4-L5, and L5-S1, mild stenosis at L3-L4 and
L4-L5, and foraminal narrowing, a painful compression of the
nerves, right greater than left, at L4-L5 and L5-S1. Dr. Gleason
No. 1-08-0265
6
diagnosed right lumbar radicular syndrome, pain in the lower back
radiating down the right leg in a radicular-type nerve-root
distribution.
On December 11, 2003, the plaintiff filed his complaint
against the defendants, claiming that Dr. Elias breached his duty
of care to the plaintiff by Dr. Elias's performance of surgical
procedures on the plaintiff's spine and back on December 28,
2001. The plaintiff also alleged that Dr. Elias's negligent acts
caused him to suffer severe and permanent injuries.
B. Pertinent Trial Testimony
Dr. Clarence Fossier, the plaintiff's retained expert,
testified he had performed "thousands of discograms" during his
career. He explained that the problem with discography was that
30% of the time the test renders a false positive. As a result,
discograms are considered controversial in the orthopedic field
in terms of concordant pain. In other words, if the discogram
produces pain similar to the patient's usual pain, does that
prove that the disc, which was injected, is the source of the
patient's back pain? Dr. Fossier opined that Dr. Elias deviated
from the standard of care by performing the plaintiff's August 1,
2001, discogram. Dr. Fossier identified "the standard of care
[as] what a well-trained orthopedic surgeon would do in similar
circumstances" and that the "vast majority" of orthopedic
surgeons would not perform a discogram on their own surgical
No. 1-08-0265
7
patients because of the lack of objectivity it creates. Dr.
Fossier concluded that Dr. Elias's performance of the discogram
caused the plaintiff injury because it resulted in a false
positive, leading to Dr. Elias's performance of unnecessary
surgical procedures, the endoscopic discectomy and IDET
procedure, on the plaintiff. Dr. Fossier opined that, based on
the plaintiff's symptoms as they presented in 2001, no surgical
procedures could have relieved his back pain because he did not
have a radicular component. Dr. Fossier concluded that Dr. Elias
breached the standard of care by relying on the discogram results
to determine that surgical procedures were indicated.
Dr. Fossier testified further that Dr. Elias's performance
of the endoscopic discectomy was also a deviation of the standard
of care because it was not indicated, "was unnecessary," and "had
no chance of curing [the plaintiff's] backache." Dr. Fossier
testified the passage of the endoscope during the December 28,
2001, endoscopic discectomy surgery caused the plaintiff's
radicular right leg pain. Dr. Fossier further opined that the
surgery accelerated the degenerative process because the removal
of disc tissue widened the annular opening, creating some scar
tissue. However, during cross-examination, Dr. Fossier
acknowledged that no one, including himself, could predict
whether the procedure in 2001 adversely affected the natural
progression of the plaintiff's disc degeneration.
Dr. Fossier testified the IDET procedure employed by Dr.
No. 1-08-0265
8
Elias is considered controversial in the area of orthopedic
medicine. Dr. Fossier explained that the procedure was
controversial because "it doesn't work." Dr. Fossier,
acknowledged, however, that the procedure had a "theoretical
basis to help" because the plaintiff had back pain.
Dr. Gary Skaletsky, a neurosurgeon, testified on behalf of
the plaintiff. According to Dr. Skaletsky, it was a deviation
from the standard of care for Dr. Elias to perform the
plaintiff's discogram where he was also the surgeon who would
perform any subsequent surgeries. Dr. Skaletsky opined that Dr.
Elias deviated from the standard of care because the diagnostic
test of the discogram showed a degenerative pattern that did not
warrant either endoscopic surgery or the IDET procedure. At
trial, Dr. Skaletsky attributed the plaintiff's radicular pain to
Dr. Elias's performance of the two surgical procedures, not to
the natural progression of the plaintiff's degenerative disc
disease.
Dr. Anthony Yeung, an orthopedic spine surgeon specializing
in endoscopic spine surgery, testified as an expert witness on
behalf of the defendants. Dr. Yeung co-developed the Yeung
Endoscopic Spine System, a series of instruments used in
endoscopic spinal surgery. Dr. Elias attended one of Dr. Yeung's
training courses in endoscopic spine surgery in 1999 and adopted
his system. Dr. Yeung testified he believes "endoscopic spine
surgery is going to be the future of spine surgery just like
No. 1-08-0265
9
arthrosporic knee surgery and shoulder surgery became the gold
standard *** in the 1970s." Dr. Yeung admitted he is biased
toward endoscopic spinal surgery.
Based on his review of the plaintiff's records and his own
training and experience, Dr. Yeung concluded Dr. Elias conformed
to the standard of care in his treatment and care of the
plaintiff. Dr. Yeung testified the plaintiff was a good
candidate for the discogram because he had an abnormal MRI
indicating three discs that were potentially painful. Dr. Yeung
explained that a discogram is necessary to determine whether an
abnormality at a disc level that shows up on an MRI is the actual
source of pain the patient is claiming to experience. Dr. Yeung
stated "it is very important for the surgeon who is going to make
the decision with respect to the need for surgery to do his own
discogram." Dr. Yeung explained his rationale, testifying that
because pain is subjective, having the surgeon perform the
discogram allows the surgeon to correlate the type of pressure he
places on the patient's disc with the pain findings reported by
the patient to eliminate false positives, which in turn, provides
the surgeon with objective evidence in deciding whether surgery
is right for the patient. Dr. Yeung concluded it is within the
standard of care for the surgeon that may later operate on the
patient to perform the discogram himself. On cross-examination,
Dr. Yeung acknowledged that the orthopedic surgeon that performs
the patient's discogram may have a financial interest
No. 1-08-0265
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recommending surgery based on the discogram's results. Dr. Yeung
noted there is no "check" on the recommendation for surgery by
another physician. Dr. Yeung stated there is a disagreement
among spinal surgeons whether under these circumstances, the same
surgeon should perform both the discogram and any indicated
surgery on his own patient.
Dr. Yeung testified that based on Dr. Elias's findings
during the discogram, the plaintiff was a proper candidate for
the endoscopic spinal surgery and the IDET procedure. Dr. Yeung
explained that because Dr. Elias did not evoke pain at the L2-L3
level while performing the plaintiff's discogram, he was able to
validate the test. Dr. Yeung opined that because the patient
indicated experiencing pain at the three different levels of his
lumbar spine, the results of the discogram confirmed three disc
abnormalities and endoscopic surgery was appropriate.
On cross-examination, Dr. Yeung conceded that the radicular
pain the plaintiff complained of after the procedures by Dr.
Elias was in some way attributed to or caused by those
procedures. However, Dr. Yeung stated that radicular pain is a
known risk of the surgery, which the standard of care requires be
discussed with the patient; Dr. Yeung asserted that, based on his
reading of the plaintiff's medical charts, Dr. Elias discussed
this risk with the plaintiff.
Th jury returned a verdict in favor of the plaintiff in the
amount of $500,000, including an award of $155,000 for the
No. 1-08-0265
11
plaintiff's future medical expenses. The trial court granted a
remittitur and reduced the award for future medical expenses to
$55,000.
II. ANALYSIS
A. Denial of Motion in limine to Bar Motivation Evidence
The defendants contend that the trial court erred when it
denied the defendants' motion in limine to bar any reference or
argument that economic motivation played any part in the care Dr.
Elias rendered to the plaintiff. The defendants maintain that
motive is not an element of a medical malpractice cause of
action. Therefore, financial motivation is irrelevant to
establishing the cause of action.
1. Standard of Review
The court applies the abuse of discretion standard to a
review of a trial court's ruling on a motion in limine. Schmitz
v. Binette, 368 Ill. App. 3d 447, 452, 857 N.E.2d 846 (2006). We
will find an abuse of discretion only where no reasonable person
would take the view adopted by the trial court. Keefe-Shea Joint
Venture v. City of Evanston, 364 Ill. App. 3d 48, 61, 845 N.E.2d
689 (2005).
2. Discussion
To recover damages in a negligence medical malpractice
action, a plaintiff must establish: (1) the proper standard of
care, (2) a deviation from that standard, and (3) an injury
proximately caused by the deviation from that standard of care.
No. 1-08-0265
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Purtill v. Hess, 111 Ill. 2d 229, 241-42, 489 N.E.2d 867 (1986).
Expert medical testimony is required to establish the proper
standard of care and the defendant's deviation from that standard
unless the defendant's "negligence is so grossly apparent or the
treatment so common as to be within the everyday knowledge of a
layperson." Purtill, 111 Ill. 2d at 242.
The trial court denied the defendants' motion in limine to
exclude the motivation evidence because the court found it was
relevant to an issue in this case. "Relevant evidence" is that
which has "any tendency to make the existence of any fact that is
of consequence to the determination of the action more or less
probable than it would be without the evidence." Wojcik v. City
of Chicago, 299 Ill. App. 3d 964, 971, 702 N.E.2d 303 (1998).
The defendants argue that because motive is not an element
of a medical malpractice case, the trial court abused its
discretion in permitting this line of questioning and testimony.
The defendants further argue, "the error of allowing the non-
issue of motive into the case was compounded by the fact that
motive was allowed to become part of the standard of care." The
defendants contend that through the plaintiff's two experts and
the cross-examination of Dr. Elias's expert, the issue of
financial motive "was insinuated into the entire case as both an
element of the cause of action itself and the definition of the
standard of care." The defendants maintain that the error was
further compounded because motive became a major theme of the
No. 1-08-0265
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plaintiff's closing argument. They conclude that this evidence
deprived Dr. Elias of a fair trial because the "jury could
wrongly infer from [the evidence] that it must consider the
defendant's motive for doing the discogram and the surgeries
because motive is part of the standard of care, and conclude, as
occurred in this case, that the improperly defined standard of
care was breached because of the irrelevant issue of motive."
In Neade v. Portes, 193 Ill. 2d 433, 739 N.E.2d 496 (2000),
the supreme court was presented with the issue of whether, in a
complaint alleging medical negligence, the patient had a cause of
action for breach of fiduciary duty against the physician for
that physician's failure to disclose financial incentives that
existed under the physician's arrangement with the patient's HMO;
the supreme court found the patient could not bring a claim of
breach of fiduciary duty against the physician under those
circumstances. Neade, 193 Ill. 2d at 435. The plaintiff's
complaint alleged the physician defendant was negligent for
failing to authorize certain diagnostic tests and by refusing to
disclose his financial relationship with the patient's HMO. The
trial court agreed with the defendants' argument that financial
motive was not relevant to whether the defendant physician
breached the applicable standard of care in treating the patient.
Neade, 193 Ill. 2d at 437-38. The appellate court agreed with
the trial court that the allegations relating to financial motive
are not appropriate in a medical negligence claim, but held that
No. 1-08-0265
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evidence relating to this issue may be relevant at trial to
attack the defendant physician's credibility if he testified.
Neade, 193 Ill. 2d at 439. The supreme court agreed with the
appellate court that the evidence of financial incentives could
be relevant at trial, noting "[t]he relevance and admission of
such evidence is for the discretion of the trial court." Neade,
193 Ill. 2d at 450.
The defendants also rely on Bearden v. Hamby, 240 Ill. App.
3d 779, 608 N.E.2d 282 (1992). In that case, this court reviewed
a contempt citation for refusal to produce tax returns the
plaintiff claimed were relevant to establish the "motive" for the
defendant physician's breach of the standard of care. Bearden,
240 Ill. App. 3d at 783. We found the tax returns irrelevant
because why the defendant physician breached the applicable
standard of care was not relevant to the determination of whether
the defendant physician breached the standard of care. See
Bearden, 240 Ill. App. 3d at 783.
Here, the plaintiff argued the financial incentive evidence
established the breach of the standard of care because spinal
surgeons should not perform and interpret discograms for their
potential surgical patients because the presence of financial
incentive, regardless of whether it actually motivated the
surgeon, destroys the guarantee of objectivity in the discogram.
Accordingly, the evidence of financial incentive directly
addressed whether Dr. Elias breached the standard of care, not
No. 1-08-0265
15
why. As such, we find Bearden inapposite.
The defendants maintain that the surgical procedures were
indicated to treat the plaintiff's complaints of back pain and
that the discogram was the proper diagnostic test for Dr. Elias
to rely on in determining to proceed with the surgical
procedures. However, the surgical procedures performed by Dr.
Elias were not indicated, in part because, prior to the surgery,
the plaintiff had no radicular pain, that is, pain radiating from
his back into his legs. Moreover, the plaintiff presented the
testimony of Dr. Skaletsky to establish that it was a deviation
from the standard of care for Dr. Elias, as the potential
operating surgeon, to perform and interpret the discogram, which
would determine whether spinal surgery was necessary.
The defendants then argue that testimony concerning Dr.
Elias's financial incentive was improperly injected into the
trial during Dr. Yeung's testimony. On cross-examination, Dr.
Yeung was asked whether criticism existed in the medical
community regarding operating surgeons interpreting discograms
for potential surgical patients, specifically operating surgeons
who had a financial interest in the outcome of the discogram.
Dr. Yeung acknowledged that such criticism existed. Dr. Yeung
acknowledged hearing physicians at medical seminars, including
Dr. Alexander Ghanayem of Loyola University Medical Center,
express their opinion that spinal surgeons should not perform and
interpret discograms for their potential surgical patients.
No. 1-08-0265
16
The plaintiff based his negligence claim that Dr. Elias
deviated from the standard of care in performing the IDET and
endoscopic procedures on Dr. Elias's performance and
interpretation of the discogram, the diagnostic tool for
determining whether the subsequent procedures were necessary.
The plaintiff argued that based on his symptoms, specifically his
lack of radicular pain, the discogram could not indicate that the
subsequent surgical procedures would relieve his pain. The
evidence of financial incentive supported the plaintiff's claim
that the surgical procedures were unnecessary. To refute the
plaintiff's allegations, the defendants argued the discogram
conclusively indicated the procedures were necessary, relying
primarily on Dr. Yeung's testimony. In order to allow the jury
to adequately assess the parties' varying theories of what
occurred, the court allowed the financial incentive evidence.
We conclude that the trial court did not abuse its
discretion in permitting the evidence of financial motive to be
introduced in a limited and specific manner to address the issue
of the defendants' compliance with the standard of care.
B. Motion for New Trial
1. Standard of Review
We review a trial court's denial of a motion for new trial
based on the manifest weight of the evidence for an abuse of
discretion.
No. 1-08-0265
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2. Discussion
The defendants argue the verdict must be reversed because it
is against the manifest weight of the evidence. The defendants
contend the insufficiency of the evidence required the trial
court to grant their posttrial motion for a new trial.
A trial court should order a new trial if, after weighing
the evidence, the court determines that the verdict is contrary
to the manifest weight of the evidence. Maple v. Gustafson, 151
Ill. 2d 445, 454, 603 N.E.2d 508 (1992). "'A verdict is against
the manifest weight of the evidence where the opposite conclusion
is clearly evident or where the findings of the jury are
unreasonable, arbitrary and not based upon any of the evidence.'"
Maple, 151 Ill. 2d at 454, quoting Villa v. Crown Cork & Seal
Co., 202 Ill. App. 3d 1082, 1089, 560 N.E.2d 969 (1990). As a
reviewing court, we will not reverse the trial court's decision
with respect to a motion for a new trial unless the court abused
its discretion. Maple, 151 Ill. 2d at 455.
The defendants argue the jury's liability finding must be
overturned because the plaintiff failed to prove the standard of
care and proximate cause regarding Dr. Elias's performance of the
endoscopic discectomy and IDET procedure. What the defendants
fail to recognize is that plaintiff was not claiming that Dr.
Elias negligently performed the endoscopic discectomy and IDET
procedure. Rather, the performance of these procedures was in
and of itself negligent. Based on the plaintiff's symptoms and
No. 1-08-0265
18
the discogram, which the plaintiff maintained could not have
possibly indicated surgery was necessary, the plaintiff's theory
was that Dr. Elias breached the standard of care by performing
unnecessary surgical procedures. Regardless of whether those
procedures were properly performed, those unnecessary surgeries
resulted in injury to him in the form of radicular pain.
The defendants maintain that the IDET procedure was
indicated by the discogram. Therefore, Dr. Elias did not violate
the standard of care by performing the IDET procedure because it
was necessary. The defendants rely on the testimony of the
plaintiff's orthopedic expert, Dr. Fossier, that "the IDET
procedure, at least theoretically, may have had a place," and
possibly "had a theoretical basis to help." The defendants claim
because Dr. Fossier did not find use of the IDET procedure to be
a deviation from the standard of care, nor did he establish any
causal link between the IDET and the plaintiff's claimed injury,
the plaintiff failed to establish his claim of medical
negligence.
The plaintiff's other expert, Dr. Skaletsky, testified the
IDET could not be indicated by the discogram and, therefore,
found its use constituted a deviation from the standard of care.
Dr. Skaletsky attributed the overall instability of the
plaintiff's lumbar spine and the creation of right radiculopathy,
in part, to Dr. Elias's performance of the IDET procedure on the
plaintiff.
No. 1-08-0265
19
The defendants argue the expert testimony proves that
differing opinions regarding the treatment options available to
the plaintiff exist within the standard of care and, therefore,
Dr. Elias's choice of treatment could not be considered a
deviation of the standard of care merely because Dr. Skaletsky
disagreed with it. See Schmitz, 368 Ill. App. 3d at 455.
As we discussed above, the defendants' argument misconstrues
the plaintiff's negligence claim. Whether Dr. Elias breached the
standard of care in performing the IDET procedure was not at
issue. Rather, the issue was whether Dr. Elias's breach of the
standard of care in performing the discogram led to unnecessary
surgical procedures, an injury in and of itself, and the
plaintiff's radicular pain, which he claimed he did not
experience prior to the procedures. Accordingly, any differences
between Dr. Fossier's and Dr. Skaletsky's opinions did not create
for the jury "the impossible task of choosing between conflicting
standards"; rather, they merely created a question of fact as to
whether the plaintiff's claimed injury of radicular pain was the
result of the IDET procedure, an issue properly resolved by the
jury.
The jury's role is to resolve conflicts in the evidence,
determine the credibility of the witnesses and decide the weight
to be given each witness's testimony. Maple, 151 Ill. 2d at 452.
As a reviewing court, it is not within our power to "usurp the
function of the jury and substitute [our] judgment on questions
No. 1-08-0265
20
of fact fairly submitted, tried, and determined from the evidence
which did not greatly preponderate either way." Maple, 151 Ill.
2d at 452-53.
The credibility determination of the witnesses was for the
jury to make and although each of the plaintiff's witnesses
offered a different conclusion regarding whether the IDET
procedure caused the plaintiff's radicular pain, we do not find
the jury's implied acceptance of Dr. Skaletsky's opinion, based
on its verdict in favor of the plaintiff, to be "'unreasonable,
arbitrary and not based upon any of the evidence.'" Maple, 151
Ill. 2d at 454, quoting Villa, 202 Ill. App. 3d at 1089.
Next, the defendants argue the plaintiff failed to establish
that Dr. Elias's performance of the surgical procedures
proximately caused the plaintiff injury. The defendants claim
that because the known risks of lumbar spinal surgery, performed
within the standard of care, include a result of no improvement
in the patient's symptoms, spinal instability, and/or injury to
the nerve root or spinal cord, the plaintiff cannot establish a
causal link.
The term "proximate cause" encompasses two distinct
requirements: cause in fact and legal cause. Lee v. Chicago
Transit Authority, 152 Ill. 2d 432, 455, 605 N.E.2d 493 (1992).
The first requirement, cause in fact, is present "when there is a
reasonable certainty that a defendant's acts caused the injury or
damage." Lee, 152 Ill. 2d at 455. Legal cause is a question of
No. 1-08-0265
21
foreseeability. "'[A] negligent act is a proximate cause of an
injury if the injury is of a type which a reasonable man would
see as a likely result of his conduct.'" Lee, 152 Ill. 2d at
456, quoting Masotti v. Console, 195 Ill. App. 3d 838, 845, 552
N.E.2d 1292 (1990). The foreseeability of radicular pain from
spinal surgery is not contested here.
The plaintiff argues that under a "cause in fact" analysis,
he carried his burden of proof as to proximate cause by
establishing that Dr. Elias performed an unnecessary procedure
which caused an injury, regardless of whether that injury was a
known risk of the surgery. Moreover, the plaintiff argues he
established a clear connection between the defendants' breach of
the standard of care and his injury through the expert testimony
of Dr. Skaletsky. Dr. Skaletsky testified that the surgical
procedures "resulted in significant narrowing of the central
spinal canal as well as the lateral neuroforamina as well as
instability and slippage of vertebra." Dr. Skaletsky concluded
the disc volume in two discs decreased as a result of the
surgical procedures and that the loss in disc volume caused the
plaintiff's pain and numbness in his right leg. We agree that
the plaintiff offered sufficient evidence from which the jury
could reasonably find the element of proximate cause had been
satisfied.
The defendants then argue the plaintiff failed to offer
proof of injury. At trial, the plaintiff testified that after
No. 1-08-0265
22
the surgery, he could not exercise, run, or sit in a vehicle for
an extended period of time. He claimed he was unable to work as
a carpenter. The defendants contend the plaintiff's testimony
did not support a finding that the procedures caused injury. The
defendants maintain that as of the trial in September 2007, the
plaintiff had been working, postoperatively, for 4 1/2 years as a
union organizer for the Chicago Regional Carpenters.
Additionally, prior to surgery, the plaintiff took prescription
pain medicine; at trial, he testified he was using over-the-
counter pain medication. Prior to surgery, the plaintiff was
unable to lift, walk, run or sit for any length of time. The
defendants argue the physical limitations the plaintiff
experienced after the surgery are the same he experienced prior
and, therefore, the plaintiff did not establish an injury
causally linked to Dr. Elias's conduct.
The plaintiff maintains that Dr. Elias's performance of the
unnecessary surgical procedures caused injury to the plaintiff in
the form of radicular pain into his right leg, which was not
present before the procedures. The defendants argue that the
plaintiff had radicular pain into his right leg prior to
undergoing the surgical procedures. However, the plaintiff
denied experiencing radicular pain at any time prior to the
procedures. Dr. Yeung, the defendants' expert witness, conceded
that the radicular pain experienced by the plaintiff following
the surgery was caused or contributed to by the surgical
No. 1-08-0265
23
procedures.
Based on the evidence presented concerning the plaintiff's
injuries following the surgical procedures, at best the
defendants raised a factual dispute. As such, this issue was
properly decided by the trier of fact. Maple, 151 Ill. 2d at
452. Because we will not substitute our judgment for that of the
trier of fact on issues of credibility and the weight to be given
any particular piece of evidence, we accept the jury's implied
conclusion, based on their verdict against the defendants, that
the plaintiff offered sufficient evidence to show injury.
At trial, the jury resolved the matters the defendants raise
on appeal in favor of the plaintiff. The jury's conclusion was
not arbitrary or unreasonable in light of the evidence before it.
Accordingly, the trial court properly determined that a new trial
was not justified because the jury's conclusion was not against
the manifest weight of the evidence. The trial court did not
abuse its discretion in denying the defendants' motion for a new
trial.
C. Plaintiff's Cross-Appeal
In his cross-appeal, the plaintiff contends that the trial
court abused its discretion in granting remittitur of his future
medical expenses.
The jury returned a verdict in favor of the plaintiff in the
amount of $500,000, which included an award for future medical
expenses in the amount of $155,000. The defendants filed a
No. 1-08-0265
24
posttrial motion arguing, inter alia, that the award of future
medical expenses was not supported by the evidence at trial. The
trial court granted in part and denied in part the portion of the
defendants' posttrial motion seeking remittitur, agreeing that
some of the future medical expenses were not adequately supported
by the evidence. In reducing the plaintiff's award by $100,000,
the trial court recognized that an expert is not required to
provide specific amounts to support an award of future medical
expenses. However, the court stated:
"The problem that I am having is you have to have some
evidence so the jury doesn't speculate or use their own
personal knowledge which they're not supposed to do. There
must be something in the record from which a jury has a
basis to give future medical numbers."
The plaintiff consented to the entry of the remittitur to avoid a
new trial on the issue of damages.
Supreme Court Rule 366(b)(2)(ii) permits a party to raise
the issue of the remittitur on appeal only if the opposing party
brings an appeal from the judgment. 155 Ill. 2d R.
366(b)(2)(ii). Here, the defendants initiated the appeal and,
therefore, the issue of remittitur is properly before us.
1. Standard of Review
We review the trial court's ruling on a motion for a
remittitur for an abuse of discretion. See Kindernay v.
Hillsboro Area Hospital, 366 Ill. App. 3d 559, 572, 851 N.E.2d
No. 1-08-0265
25
866 (2006).
2. Discussion
The damages at issue concern the cost of a future spinal
fusion surgery. In his deposition testimony, Dr. Gutierrez
opined that the plaintiff would need to undergo a lumbar fusion
in order to stabilize his spine and that the cost for such a
procedure would be $55,000. Dr. Gutierrez further stated that in
addition to the surgical fee, the plaintiff would incur expenses
for a one week stay in the hospital following the spine fusion,
as well as charges for radiology, anesthesiology and physical
therapy services. The plaintiff argues Dr. Gutierrez's testimony
was sufficient to support the jury's award of $100,000 for future
medical expenses not specifically itemized.
In Richardson v. Chapman, 175 Ill. 2d 98, 676 N.E.2d 621
(1997), our supreme court observed that, "[t]he determination of
damages is a question reserved to the trier of fact, and a
reviewing court will not lightly substitute its opinion for the
judgment rendered in the trial court." Richardson, 175 Ill. 2d
at 113. "A verdict will not be set aside by a court unless it is
so excessive that it indicates that the jury was moved by passion
or prejudice or unless it exceeds the necessarily flexible
limits of fair and reasonable compensation or is so large that it
shocks the judicial conscience." Kindernay, 366 Ill. App. 3d at
572. Where the jury's award falls within the flexible range of
conclusions reasonably supported by the evidence, the court
No. 1-08-0265
26
should not grant a remittitur. Kindernay, 366 Ill. App. 3d at
572.
The defendants cite Kinzinger v. Tull, 329 Ill. App. 3d
1119, 770 N.E.2d 246 (2002). In Kinzinger, the Fourth District
reduced a jury's award of future medical expenses because it was
"over three times the amount established in the trial court and
not supported by the evidence." Kinzinger v. Tull, 329 Ill. App.
3d at 1130. Specific amounts of past and future medical expenses
were introduced into evidence. Based on the evidence presented
at trial, the appellate court found the jury had no basis to
award an amount greater than the specific amounts introduced into
evidence. Kinzinger, 329 Ill. App. 3d at 1130. Nonetheless, the
court in Kinzinger recognized that "the jury enjoys a certain
degree of latitude in awarding compensation for medical costs
that, as shown by the evidence, are likely to arise in the future
but are not specifically itemized in the evidence." Kinzinger,
329 Ill. App. 3d at 1130, citing Richardson, 175 Ill. 2d at 112.
In Richardson, the supreme court reduced a $1.5 million jury
award for future medical expenses by $1 million. The court
concluded that the adjustment allowed the plaintiff recovery for
expected expenses for which no specific estimates were
introduced, but was not so large as to be excessive in light of
the trial testimony. Richardson, 175 Ill. 2d at 112-13.
In light of Richardson, we find the trial court abused its
discretion by reducing the jury's award by $100,000 for future
No. 1-08-0265
27
medical expenses not specifically itemized. Dr. Gutierrez's
deposition testimony supported an award of future medical
expenses over the $55,000 attributed to the surgical fee. Dr.
Gutierrez opined the plaintiff would incur expenses for a one-
week stay in the hospital following the surgery, as well as
charges for radiology, anesthesiology and physical therapy
services. We find nothing to suggest the jury's award of
$100,000 to cover these additional charges resulted from passion
or prejudice, or that it exceeded the necessarily flexible limits
of fair and reasonable compensation. See Kindernay, 366 Ill.
App. 3d at 572. Accordingly, it was an abuse of discretion for
the trial court to subject the jury's award to remittitur for
$100,000.
III. CONCLUSION
The jury's verdict as to liability is affirmed, and the
cause is remanded. The trial court is directed to vacate the
remittitur in the amount of $100,000 and enter judgment in favor
of the plaintiff in the amount awarded by the jury.
Affirmed in part; cause remanded with directions.
PATTI, J., concurs.
GARCIA, J., dissents.
JUSTICE GARCIA, dissenting:
I am persuaded by Dr. Elias's argument that the circuit
court deviated from the Illinois Supreme Court's holding in Neade
v. Portes, 193 Ill. 2d 433, 739 N.E.2d 496 (2000), by admitting
No. 1-08-0265
28
evidence, according to the plaintiff's own brief, that Dr. Elias
had "a financial incentive for him to interpret the results of
the discogram as an indication for the subsequent spinal surgery
to be performed by him." (Emphasis added.) More fundamentally,
I question the legitimacy of the plaintiff's theory that Dr.
Elias violated the standard of care for an orthopedic surgeon by
"personally performing the discogram on Mr. Martinez" when Dr.
Elias also performed the endoscopic discectomy and the IDET
procedure, both of which he determined were medically warranted
based on the results of the discogram. I fault the plaintiff's
theory because no case is presented that permits the performance
of a medical procedure to be characterized as violating the
applicable standard of care without faulting the performance of
the medical professional in carrying out the medical procedure
itself. The plaintiff deems it malpractice whenever an
orthopedic surgeon performs a discogram on a patient when the
same surgeon may perform additional surgery, as the diagnostic
results of the discogram dictate, without regard to whether the
discogram itself was properly performed. The plaintiff's theory
suggests that an orthopedic surgeon has a duty not to perform
both the discogram and any subsequent spinal surgery because
there is a financial incentive for the orthopedic surgeon to
interpret the results of the discogram in favor of subsequent
spinal surgery. I believe such a theory is the equivalent of a
fiduciary duty claim in the context of a medical malpractice
No. 1-08-0265
29
suit, which our supreme court disavowed. Neade, 193 Ill. 2d at
450 ("We decline to recognize a new cause of action for breach of
fiduciary duty against a physician for the physician's failure to
disclose [financial] incentives ***").
Medical Negligence
"To sustain an action for medical negligence, plaintiff must
show: (1) the standard of care in the medical community by which
the physician's treatment was measured; (2) that the physician
deviated from the standard of care; and (3) that a resulting
injury was proximately caused by the deviation from the standard
of care." Purtill v. Hess, 111 Ill. 2d 229, 241-42, 489 N.E.2d
867 (1986). I believe the evidence falls short in this case on
the key elements of the standard of care and proximate cause.
Even accepting the plaintiff's theory that the endoscopic
discectomy and the IDET were medically unnecessary and that the
performance of each injured the plaintiff, that Dr. Elias
performed the discogram, rather than another physician, says
little about whether the endoscopic discectomy or the IDET should
have been performed where the plaintiff's evidence was that there
is a high incidence of false positives with the discogram.
Stated differently, given the high incidence of false positives
in the discogram procedure, proximate cause between Dr. Elias's
performance of the discogram and the injury the plaintiff
allegedly suffered by the performance of the endoscopic
discectomy and the IDET is at best tenuous.
No. 1-08-0265
30
Even if an independent orthopedic surgeon had performed the
discogram, based on the purported high incidence of false
positives, that medical professional might well have determined
that the endoscopic discectomy and the IDET were medically
warranted. If the endoscopic discectomy and the IDET were
determined to be medically warranted based on the results of an
independently performed discogram, it necessarily follows that
there is no nexus between Dr. Elias performing the discogram and
his performance of the endoscopic discectomy and the IDET on the
plaintiff, which he found medically warranted based on the
results of the discogram. See Aguilera v. Mt. Sinai Hospital
Medical Center, 293 Ill. App. 3d 967, 976, 691 N.E.2d 1 (1997)
(no medical link between the alleged negligence in the delay in
performing a CT scan and any neurosurgery, which might have been
indicated, when the damage to the decedent's brain was beyond
surgical help); Scardina v. Nam, 333 Ill. App. 3d 260, 271, 775
N.E.2d 16 (2002) (alleged failure to properly read the
radiological film did not impact surgeon's examination of the
plaintiff's colon during the subsequent surgery).
Apart from proximate cause, I also question the standard of
care evidence. The standard of care is the relevant inquiry by
which we judge a physician's actions in a medical negligence
case. Under a standard of care analysis, a defendant will be
held to "the reasonable skill which a physician in good standing
in the community would use in a similar case." Newell v. Corres,
No. 1-08-0265
2 Even the language used by Dr. Skaletsky to describe the
controversy within the medical community over the diagnostic role
of discograms suggests it is a matter of judgment. The discogram
is controversial "[b]ecause the reliance upon a purely subjective
response is considered by many inappropriate in its usage to
direct a potential surgical procedure ***." Emphasis added.
31
125 Ill. App. 3d 1087, 1094, 466 N.E.2d 1085 (1984). Only if a
physician deviates from the standard of care, by demonstrating
less than reasonable skill, can the physician be held liable for
medical negligence.
Here, the jury was instructed that as to this claim by the
plaintiff, Dr. Elias was negligent in that he "relied on a
discogram that he personally performed." Yet, the skill of Dr.
Elias in performing the discogram was never questioned. No
medical expert testified that Dr. Elias performed the discogram
with less than "the reasonable skill which a physician in good
standing in the community would use in a similar case." Instead,
Dr. Elias was faulted for performing the discogram "personally."
This, I submit, was at best a "judgment" call on the part of Dr.
Elias, with which the plaintiff's experts disagreed.2
I cannot agree that the standard of care in this case
directs that a "treating physician and a potentially operating
surgeon [cannot] be the same person performing the discogram in a
patient" as Dr. Skaletsky testified. Whether the "treating
No. 1-08-0265
32
physician and a potentially operating surgeon" are the same
person says absolutely nothing about "the reasonable skill which
a physician in good standing in the community would use in a
similar case." Newell, 125 Ill. App. 3d at 1094. The reason for
my categorical statement is evident: Had Dr. Skaletsky himself
performed the discogram on Mr. Martinez, the diagnostic result of
the discogram may very well have been the same as the result Dr.
Elias reached. While we do not know, I submit, the record
evidence was insufficient to allow the jury to conclude that the
standard of care required someone other than Dr. Elias perform
the discogram when it cannot be denied that the same result might
have been obtained had the discogram been performed by another
physician. The plaintiff's experts' opinions to the contrary
amounted to no more than their own personal preference for having
an independent orthopedic surgeon perform the discogram.
"It is insufficient for plaintiff *** merely
to present testimony of another physician
that he would have acted differently from the
defendant, since medicine is not an exact
science. It is rather a profession which
involves the exercise of professional
judgment within the framework of established
procedures. Differences in opinion are
consistent with the exercise of due care."
Walski v. Tiesenga, 72 Ill. 2d 249, 259, 381
No. 1-08-0265
33
N.E.2d 279 (1978).
I submit the evidence regarding the standard of care is lacking
where the plaintiff's claim amounts to no more than Dr. Elias
"personally performed" the discogram. I cannot agree that this
medical malpractice theory put forth by the plaintiff was a
legitimate means of calling into question Dr. Elias's medical
skills.
Because I find that the plaintiff's theory of malpractice as
to Dr. Elias' performance of the discogram amounts to no more
than a fiduciary duty claim, the presentation of this claim to
the jury is reversible error. Neade, 193 Ill. 2d at 450 ("We
decline to recognize a new cause of action for breach of
fiduciary duty against a physician for the physician's failure to
disclose [financial] incentives ***"). I reject the plaintiff's
claim that on the record evidence before us, the standard of care
required someone other than Dr. Elias perform the discogram. I
find the evidence of the proximate cause element of this claim
that Dr. Elias committed malpractice lacking. The plaintiff can
make no showing of any injury proximately resulting from Dr.
Elias's performance of the discogram because the plaintiff is
unable to demonstrate that the discogram result would have
differed had Dr. Skaletsky or some other orthopedic surgeon
performed the discogram instead.
Evidence of Financial Incentive
In his brief, the plaintiff seeks to support the
No. 1-08-0265
34
introduction of "financial interest" evidence because "the
introduction of this evidence was limited and specific to the
issue of the defendants' compliance with the standard of care."
The plaintiff claims, "the evidence of financial incentive goes
to the heart of the breach of the standard of care by the
physician." I note no authority is cited for the introduction of
such evidence even where its purpose is "limited and specific."
The plaintiff seeks to distinguish the decision in Bearden
v. Hamby, 240 Ill. App. 3d 779, 608 N.E.2d 282 (1992), with his
claim that the plaintiff in Bearden sought the defendant doctor's
tax returns "to establish the reason why the defendant physician
breached the standard of care" (emphasis in brief), claiming the
financial incentive evidence in his case goes to "how" the
defendant breached the standard of care. I fail to see the
distinction between "how" and "why" evidence as to a claimed
breach of the standard of care; nor am I persuaded that the jury
would understand the difference. I submit the distinction
between how and why is illusory in the absence of any authority
that establishes such "legal" concepts in Illinois jurisprudence.
In any event, our supreme court has made clear that only one
reason is available to introduce financial incentive evidence--to
demonstrate possible bias on the part of the physician, which is
possible only during cross-examination of the physician. Neade,
193 Ill. 2d at 450 ("capitation fund" evidence relevant only for
impeachment purposes).
No. 1-08-0265
35
In an effort to place the financial incentive evidence
within the Neade ruling that such evidence may be admissible to
demonstrate bias, the plaintiff claims his contention was "that
the testimony of Dr. Elias that his performance and
interpretation of the discogram supported his recommendation for
surgery goes to his interest and bias for performing and
interpreting the discogram in that manner. The testimony of
plaintiff's experts was that Dr. Elias deviated from the standard
of care by performing and interpreting the discogram precisely
because he had a financial interest in performing the ultimate
surgery." In Neade, the "financial incentive arrangement" was
offered as an explanation for the defendant doctor's decision not
to order a second opinion. Neade, 193 Ill. 2d at 444. The
allegation was that the defendant doctor failed to order the
second opinion because the defendant doctor would pocket funds
not used to cover such referrals and, thus, had a financial
incentive to put his own interest above the patient's. Unlike in
Neade, I see no connection between Dr. Elias personally
performing the discogram and the suggestion that the results of
the discogram might be influenced because Dr. Elias would be paid
for performing any additional surgery. I submit the concept that
a doctor is remunerated for medical procedures conducted is
grossly distorted when the remuneration itself is introduced as
evidence of a "potential appearance of a vested interest from a
surgical as well as financial outcome of the operating surgeon
No. 1-08-0265
36
being the same one to perform the study" as Dr. Skaletsky
testified to support the plaintiff's claim of an alleged breach
of the standard of care.
In other words, I reject the plaintiff's implied claim that
the financial incentive evidence, which the supreme court held
may be admitted to demonstrate bias in Neade, is equivalent to
the astonishingly obvious concept that Dr. Elias would be paid
for the performance of the endoscopic discectomy and the IDET
procedures. In Neade, the plaintiff alleged that the defendant
doctor was improperly influenced by the contract he had with the
HMO that gave the doctor an incentive to reject outside test
referrals where the doctor would receive 60% of any of the
allocated funds not expended for such outside test referrals.
Neade, 193 Ill. 2d at 437-38. That is a far cry from the
plaintiff's claim here that Dr. Elias personally performing the
discogram gave rise to a financial incentive because Dr. Elias
would be paid for any subsequent surgeries if he determined that
the endoscopic discectomy and the IDET procedures were medically
warranted based on the results of the discogram.
The plaintiff's claim that the "plaintiff's experts'
opinions could not logically have been presented to the jury
without an explanation as to the reason that interpretation of
the discogram by the operating surgeon falls below the standard
of care" simply seeks to prove too much. Whether the explanation
gave logic to the experts' opinions, I submit the opinions that
No. 1-08-0265
37
Dr. Elias should not have personally performed the discogram
should not have been admitted at all. The experts' opinions
amounted to no more than "personal preferences" for having an
independent orthopedic surgeon perform the discogram. See
Walski, 72 Ill. 2d at 259, 381 N.E.2d 279 (1978) ("It is
insufficient for plaintiff *** merely to present testimony of
another physician that he would have acted differently from the
defendant, since medicine is not an exact science").
The circuit court's admission of the plaintiff's evidence
that Dr. Elias personally performed the discogram and then was
remunerated for the endoscopic discectomy and the IDET procedure
that he determined were medically warranted by the results of the
discogram, under the guise of a deviation of the standard of care
as presenting some sort of improper financial motivation, was
reversible error under Neade. I would remand for a new trial.
I dissent.
No. 1-08-0265
38
